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Abolition of Death Penalty – A Time for National Reflection: PUCL

This release was put out yesterday by the PEOPLE’S UNION FOR CIVIL LIBERTIES

The secretive and stealthy hanging of Ajmal Kasab in Pune’s Yerwada Prison yesterday, 21st November, 2012, brings to an end the legal process involved in trying Kasab for the brutal assault by trained terrorists from across the border on Mumbai, the commercial capital of India which left 166 persons dead.

The Mumbai carnage of November 2008, more popularly abbreviated to a single term `26/11,’ constitutes one of the most heinous and deliberate attempts in recent years to cause mass mayhem and terror in India. Kasab was the only member of the terrorist team sent from Pakistan apprehended alive; he was caught on film diabolically using his modern automatic weapon in a cold blooded fashion, killing numerous people. The hanging, and the trial and legal proceedings which preceded it, admittedly complied with existing laws which permit death penalty, and cannot be faulted as such. While it may be argued, as many do that the hanging will help in an `emotional closure’ to the families of victims of 26/11, there are others who point out that other key issues still remain to be addressed. Families of victims in specific, as also other concerned citizens, have pointed out that Kasab was only a foot soldier and not the mastermind, who still remain at large.

We cannot also lose sight of the fact the reality that the backdrop of the 26/11 incidents is also the festering and unresolved internal conflict inside Kashmir, which provides an easy emotive tool for demagogues to indoctrinate and turn youth to become cold blooded `jihadi’ killers. To them, the execution will not be a deterrence.

The extensive legal process ending with the hanging of Kasab is pointed out as a triumph of the of `rule of law process’ in India. In the same breath this is also contrasted to the lack of such situation in neighbouring Pakistan. This discourse is however very worrisome; it borders on `triumphalism’ on the one hand, and on the other, it amounts to an attempt to `avenge’ or seek `vengeance’, and `eye for an eye and tooth for a tooth’ mentality, which worldview has been rejected as dangerous amongst a majority of 110 countries worldwide which have prohibited death penalty in their countries.

Such triumphalist discourse is also worrying for it hides behind emotive terminology very harsh truths of failure and miscarriage of justice in other incidents of mass killings that have occurred in India. The `cry for justice’ still remains a silent pouring of helpless anger in the hearts and souls of thousands of families of victims in incidents like planned and cold blooded slaughter of over 3000 Sikhs during the anti-Sikh riots of 1984, the massacre of hundreds of Muslims in the wake of the Babri Masjid demolition in 1992-93 (which ironically occurred in Mumbai also), the 2002 post-Godhra anti-Muslim carnage in Gujarat which saw over 2,000 Muslims killed and thousands more rendered homeless and more recently in Kokrajhar in Assam. A stark reality is the cynical manipulation and subversion of police investigation by ruling political parties and the executive to help masterminds and perpetrators escape the clutches of the law.

In the surcharged emotional atmosphere in the wake of Kasab’s hanging, even raising questions about the usefulness of hanging Kasab is considered to be `traitorous’, unpatriotic and anti-national. We in the PUCL nevertheless feel that this is a moment in our nation’s history when we need to pause and ponder, and reflect on the values that we, as a nation, should uphold, particularly relating to crime and punishment, justice and equity. We need to be conscious of the fact that a nation consumed by outrage and filled with a sense of retribution easily confuses “punishment and revenge, justice and vendetta”. We, as a nation, need to begin a dispassionate public debate on the death penalty without judgmental, indignant, righteous or moralist overtones.

PUCL has always taken a principled stand against the death sentence as being anti-thetical to the land of ahimsa and non-violence, as constituting an arbitrary, capricious and unreliable punishment and that at the end of the day, the type of sentence that will be awarded depends very much on many factors, apart from the case itself. PUCL and Amnesty International have published a major study of the entire body of judgments of the Supreme Court of India on death penalty between 1950-2008 which unambiguously shows that there is so much arbitrariness in the application of `rarest of rare’ doctrine in death penalty cases that in the ultimate analysis, death sentence constitutes a `lethal lottery’.

It may not be out of context to highlight that just two days before Kasab was hanged, on 19th November, 2012, the Supreme Court of India pointed out to the fact that in practice, the application of `rarest of rare cases’ doctrine to award death penalty was seriously arbitrary warranting a rethink of the death penalty in India.

It is also well recognised now that there can never ever be a guarantee against legal mistakes and improper application of legal principles while awarding death sentences. Very importantly, the Supreme Court of India in the case of `Santosh Kr. Bariar v. State of Maharashtra’, (2009) has explicitly stated that 6 previous judgments of the Supreme Court between 1996 to 2009 in which death sentences were confirmed on 13 people, were found to be `per incuriam’ meaning thereby, were rendered in ignorance of law. The Supreme court held that the reasoning for confirming death sentences in theses cases conflicted with the 5 judge constitutional bench decision in Bachan Singh v. State of Punjab (1980), which upheld the constitutionality of the death sentence in India and laid down the guidelines to be followed before awarding death sentence by any court in India.

It should be pointed out that of the 13 convicts awarded death sentence based on this per incuriam reasoning, 2 persons, Ravji @ Ramchandra was hanged on 4.5.1996 and Surja Ram in 5.4.1997. The fate of the others is pending decision on their mercy petitions. In the meantime a group of 7 – 8 former High Court judges have written to the President of India pointing out to the legal infirmity in the award of death sentences to these convicts and seeking rectification of judicial mistake by commuting their death sentences to life imprisonment. A very troubling question remains: how do we render justice to men who were hanged based on a wrong application of the law?

It is for such reasons, amongst others, that PUCL has long argued that it is extremely unsafe and uncivilised to retain death penalty in our statutes.

It will be useful to refer to the stand on death penalty taken by 3 of India’s foremost leaders of the independence struggle.

Mahatma Gandhi said,

“I do regard death sentence as contrary to ahimsa. Only he takes it who gives it. All punishment is repugnant to ahimsa. Under a State governed according to the principles of ahimsa, therefore, a murderer would be sent to a penitentiary and there be given a chance of reforming himself. All crime is a form of disease and should be treated as such”.

Speaking before the Constituent Assembly of India on 3rd June, 1949, the architect of India’s constitution, Dr. Ambedkar, pointed out,

“… I would much rather support the abolition of death sentence itself. That I think is the proper course to follow, so that it will end this controversy. After all this country by and large believes in the principles of non-violence, It has been its ancient tradition, and although people may not be following in actual practice, they certainly adhere to the principle of non-violence as a moral mandate which they ought to observe as dar as they possibly can and I think that having regard to this fact, the proper thing for this county to do is to abolish the death sentence altogether”.

Jayaprakash Narayan wrote more poignantly that,

“To my mind, it is ultimately a question for the respect for life and human approach to those who commit grievous hurt to others. Death sentence is no remedy for such crimes. A more humane and constructive remedy is to remove the culprit concerned from the normal milieu and treat him as a mental case … They may be kept in prison houses till they die a natural death. This may cast a heavier economic burden on society than hanging. But I have no doubt that a humane treatment even of a murderer will enhance man’s dignity and make society more humane”. (emphasis ours).

PUCL calls upon all Indians to use the present situation as a moment of national reflection, a period of serious dialogue and discussion on the values and ethics which we as a nation of Buddha and Ashoka, who epitomised humane governance, dharma and ahimsa, should accept and follow. The best tribute we can pay to the 166 persons who lost their lives due to the 26/11 Mumbai carnage is to rebuild the nation in a way that equity and justice, dharma and ahimsa prevails; in which there is no soil for discrimination and prejudice, and in which all Indians irrespective of caste, community, creed, gender or any other diversity, can live peacefully and with dignity.

We firmly believe that mercy and compassion are key values of a humane society, which are also recognised in the Indian Constitution. We also hold that abolishing death penalty is not a sign of weakness. Rather it is a stand which arises from a sense of moral authority. It is when law in tempered with mercy that true justice is done. Bereft of mercy our society would be impoverished and inhuman; mercy is quintessentially a human quality, not found elsewhere in the natural world. Excluding a fellow human being from the entitlement to mercy will make our society more blood thirsty, unforgiving and violent. We owe a duty to leave a better and less vengeful world for our children by curbing our instinct for retribution. That way we become a more humane and compassionate society. Recalling Rabindranath Tagore’s vision in the `Gitanjali’, let us re-make India into a `haven of peace’ in which future generations of Indians will rejoice and flourish.

The death penalty in India is being used in the rarest of the rare cases. Thankfully, there aren’t cases like Kasab every year. The fact that there has not been an execution in India for several years is a good thing.

However, the general and somewhat specious arguments against the use of a death penalty only apply if there is any attempt to use the death penalty more extensively in the Indian judiciary than is the case today. But I don’t think there is any support in the country or in the Indian judiciary to use the death penalty in a routine way, as it is done in some states in the US or in China.

The most specious argument presented in this forum is the call for mercy and clemency. There are many crimes which are not deserving of any mercy or clemency.

The state has a monopoly over the use of force. This is a dismal view of the state which is often attributed to Max Weber. The state maintains (or should maintain) law and order through its police and protect its citizens from external enemies with its armed forces. The use of the death penalty, as with every other penalty, does not happen in a vacuum. If the state is justified in using force, then the state may also use force to execute criminals.

A much more valid consideration from the human rights perspective is whether the penalty is commensurate to the crime. It is therefore reasonable to argue against a frequent use of the death penalty, and seek to limit its use only to the most heinous of crimes. But this the abolitionist lobby does not do.

Regrettably, the only kind of argument we get from so-called human rights groups like Amnesty is a high handed and insensitive moral posturing about the barbarity of the death penalty. Ironically, the greatest impediment to restricting the use of the death penalty in countries where it is being used far too frequently is the moralizing rhetoric of the abolitionist lobby.

As death penalty is awarded so rarely and as there is provision for condoning that to life term there is no need to rethink death penalty. Having such a provision in law is an option. Instead of campaigning for abolition PUCL and others should suggest ways to ensure that there is no miscarriage of justice in cases in which death penalty is awarded.
‘The best tribute we can pay to the 166 persons who lost their lives due to the 26/11 Mumbai carnage is to rebuild the nation in a way that equity and justice, dharma and ahimsa prevails; in which there is no soil for discrimination and prejudice, and in which all Indians irrespective of caste, community, creed, gender or any other diversity, can live peacefully and with dignity.’
26/11 would have happened even if these had been achieved because it was an act by forces that are inimical to India. PUCL may refuse to accept this reality but that is the harsh fact. PUCL should wake up to the reality and accept that such forces exist and as a country we have to do something about that. Gandhi, Ambedkar and JP lived in a different age and they could not have anticipated the birth and growth of these forces.

I don’t think death penalty solves any purpose. Moreover it reflects our sadistic instinct ‘tit for tat’. More than three fourth countries of the world have already got rid of capital punishment and their experience do not show increasing trend of heinous crimes.We should also abolish this barbaric form of punishment.